Overview: To prevent and respond to employee discrimination based on protected class status, an employer must have zero-tolerance policy against this discrimination and communicate to their workforce that discrimination against any individual based on protected class status will not be tolerated.
Employers should understand that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion and national origin. Among the other federal laws that prohibit discrimination are the Americans with Disabilities Act (disability), the Genetic Information Nondiscrimination Act (genetic information) and the Age Discrimination in Employment Act (age). State laws generally prohibit employee discrimination against the same classes protected by federal law. However, some state laws go further and consider gender identity/sexual orientation, unemployment status, and marital status to be protected classes.
An employer should implement a policy against discrimination and make sure that all employees and supervisors receive training on the policy An employer should develop and implement policies and practices that are facially neutral and do not discriminate. Further, employers should establish a multi-channeled complaint system and promptly respond to all discrimination complaints by immediately investigating and if necessary, take corrective measures and impose discipline.
Trends: There is a great deal of movement on the federal and state level to expand the protected classes under equal employment opportunity laws. Those protected under discrimination laws have advanced well beyond the traditional protected classes of race, sex, age, and disability to include genetic information, military status, transgender status, individuals with caregiving responsibilities and even unemployment status. As a result, employers can reasonably anticipate a greater number of lawsuits. Further, employers should know that there is also a trend towards class actions and allegations of widespread bias and discrimination by multiple plaintiffs. Employers need to know how to prevent and effectively respond to such claims.
For 2013 to 2016, the EEOC identified the following as some of its priorities in its Strategic Enforcement Plan (SEP): targeting recruiting and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and individuals with disabilities; protecting immigrant, migrant and other vulnerable workers from discrimination; addressing emerging issues in equal employment law based on societal legal, judicial and demographic changes (discrimination based on disabilities, pregnancy, sexual orientation and gender identity); enforcing equal pay laws; and enabling individuals to exercise their rights under employment discrimination laws.
Building on this, the EEOC updated its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. The EEOC stated that it will focus on the following: issues related to the gig and on-demand economy (i.e., independent contractors, temporary workers, staffing agencies); backlash discrimination against workers of Middle Eastern or Muslim descent; the lack of diversity in technology and the increasing use of data driven screening tools with respect to barriers to recruitment and hiring; qualification standards and inflexible leave policies as such issues relate to the Americans with Disabilities Act; pay disparities that persist based on race, ethnicity, and for individuals with disabilities and other protected groups in addition to gender- based pay discrimination and the goal of making equal pay a priority for all workers; an questionable waivers, releases, and arbitration agreements, as well as recordkeeping and significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect a decrease in the minimum standard permitted for alcohol testing, effective July 1, 2018.
Updated to reflect amendments to Seattle Human Rights Code, effective June 10, 2018.
Updated to include amendments to the state Public Health and Workplace Safety Act, effective July 1, 2018.
Updated to reflect limitations on nondisclosure and arbitration clauses, effective July 11, 2018.
Updated to reflect Westchester County ban on salary history inquiries, effective July 9, 2018.
Hawaii governor David Ige signed a flurry of bills into law on July 5, including several affecting employers. The measures included a salary history inquiry ban, a law preserving certain Affordable Care Act benefits under state law, authorization for a study to analyze and propose a paid family leave law, and a bill increasing certain workers' compensation benefits.
Updated guidance to refer to Westchester County's restriction of salary history inquiries, effective July 9, 2018.
Updated guidance to reflect the state equal pay law, effective July 1, 2018.
HR guidance and support on how to develop and implement policies to prevent and respond to employee discrimination claims against protected classes.